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Jan Lee headshot

How a Bad GMO Bill Becomes Law

By Jan Lee

It's done. A new federal law that requires labeling of all genetically modified foods (GMO) was finally signed by President Barack Obama last month. But will the law really increase transparency?

The answer to that question depends on who you ask. And as some critics note, it also may depend on who is seeking that transparency.

Federal GMO labeling bill: What it does and doesn't do

"[The] bill would exempt most current GMO foods from being labeled at all," Andrew Kimbrell, an attorney with Center for Food Safety, one of many organizations advocating clear labeling for GMO foods, wrote in the Huffington Post. That's because, in an effort to appease a variety of interest groups (and take into account that no one legislative process may fit all types or sizes of manufacturers), the new legislation exempts some companies from complying with the law.

The new law, which was signed into law on July 29, was supposed to establish a simple, uniform labeling system for foods that contain bioengineered (GMO) ingredients, such as genetically modified corn. It's estimated that 75 to 80 percent of the foods now on the market are genetically modified, and consumer groups pushed for years to mandate some sort of labeling on packages by which shoppers can readily identify such foods.

But as many critics point out, what the federal law does is far from what advocacy groups wanted. In fact, it's far from what the Vermont state law that went into effect on July 1 strove to accomplish. In a nutshell, it:

  • establishes the U.S. Department of Agriculture (USDA) as the sole arbiter when it comes to rules governing GMO ingredient labeling

  • prohibits states like Vermont from establishing their own state guidelines for labels

  • also bars states from creating seed labeling laws, such as those in Virginia and Vermont that ensured farmers could access non-GMO seeds easily

  • strips laws that made it easier for consumers to buy non-bioengineered fish

  • gives the USDA two years to come up with appropriate wording for its new rules.

The new law exempts organic foods from being labeled, simply because organic foods imply by their definition that they don't contain bioengineered ingredients.

But critics argue that, in addition to its sweeping impact on state laws, the legislation also comes with a litany of confusing verbage.

The Food and Drug Administration, which got a sneak-peak at the legislation before it arrived at the president's desk, raised a number of issues on this score. It pointed out that some of the bill's wording was actually incorrect in how it described and identified the genetically engineered products that would be exempt. Oil, which is often made from genetically engineered crops, should receive labeling, the FDA says. But thanks to the bill's complex wording, oils will not be labeled because the legislation was only designed to cover a product that "contains genetic material."

"[Oil] made from GE (genetically engineered) soy would not have any genetic material in it," writes the FDA. "Likewise, starches and purified proteins would not be covered." Those three ingredients are some of the most widely used substances when it comes to bioengineered foods.

If the legislation has the capacity to fall short on identifying today's most common genetically engineered products, will it be able to keep up with identifying tomorrow's new technological advances?

'Discriminatory' in nature

The legislation, which proposes the same labeling processes that was put forth last year in the Senate, leaves it open as to how products should be identified. The U.S. Department of Agriculture has two years to define the packaging rules. But one method, which allows for manufacturers to list the data on their website and then provide a quick reference (QR) code for smartphone scanning, has civil rights advocates alarmed.

"The GMO labeling law's principal thrust is to rely on QR codes which shoppers will scan to gain product information relative to GMOs," noted Rev. Jesse Jackson in a letter last month to President Obama.

"However, 100,000,000 Americans, most of them poor, people of color and elderly, either do not own a smartphone or an iPhone to scan the QR code or live in an area of poor Internet connectivity." While it may be assumed that many low-income families live in metropolitan areas, the fact is, most live in rural areas, where Internet coverage is often less available. According to the USDA's own statistics, 18.1 percent of low-income families lived in rural areas in 2014, while 15.1 percent lived in cities.

"There are serious questions of discrimination presented here and unresolved matters of equal protection of the law," Jackson cautioned.

And it isn't just a question of Internet access, noted Andrew Kimbrell of the Center for Food Safety. "More than 50 percent of America’s low-income and rural populations ... and more than 65 percent of the elderly don’t even own smartphones," an extravagance that many may not even be able to afford. This "digital divide" would be even more apparent and disempowering if poor families and disabled citizens couldn't access the same information that other income groups could find standing in the store aisle.

The circuitous road to transparency

Last year, when news that the legislation's predecessor (Senate Amendment 764) failed to muster enough votes to bypass debate and was temporarily stalled, we raised one more problematic concern about the bill that ostensibly was supposed to create transparency about GMO foods: its lack of procedural transparency.

Senate procedures allow bill amendments to be attached to other amendments, even if what they are attached to has absolutely nothing to do with the bill being proposed. That allows senators to quickly suggest wording changes, like edits for a particular bill, rather than submitting a whole new bill in its place.

But it's a process that can also allow lawmakers to replace the wording of an old bill that has already been made law, with the wording of a new, entirely unrelated amendment.

So for example, a notoriously controversial GMO regulation bill can be attached to a highly popular bill to fund a marine education program and given the same "nickname." Presumably this allows for speedy discussion and debate of worthwhile topics for consideration. Except that, as Kimbrell pointed out, the amendment known formally on paper as the "Bill to Reauthorize and Amend the National Sea Grant College Program Act, and For Other Purposes" (SA 764), and known informally as the proposed "GMO bill," never received debate or discussion in the Senate. The DARK Act (Deny Americans the Right to Know), as it was called by critics, truly lived up to its name, Kimbrell wrote. "The bill's moniker is apt."

That's not to say that a number of senators didn't offer amendments that reflected the spirit of Vermont's GMO labeling law. Sens. Bernie Sanders (D-Vt.) and Jeff Merkley (D-Ore.) were among those who attempted to build consumer concerns into the text and to bring the issue to discussion, without success.

On July 7, Sen. Mitch McConnell (R-Ky.) moved to have the entire text of the Sea Grant Program amendment replaced with text from the GMO amendment. (It didn't matter; the text to the shell known as the 2015 Sea Grant funding bill was passed a year earlier, and funding was already in place.) And with quiet speed, the GMO bill passed and ushered on its way to the House.  Barely three weeks later, on July 29, the bill became law with President Obama's signature.

Not surprisingly, Obama received a fair amount of criticism from consumer advocacy groups for signing the bill. But perhaps the real question is how a topic that garnered so much attention, so many state referendums and so much consumer angst could follow such a convoluted path to victory.

Consumer advocacy groups vowed to make sure there will be more transparency and consumer rights built into the coming USDA rules. Others, Kimbrell noted, are looking at the legal implications of a law that has the ability to disenfranchise the rights of low-income, blind, low vision, physically impaired, mentally impaired and other consumer groups that can't take advantage of smartphone technology.

It should be a busy two years.

Image credit: Flickr/Alexis Baden-Mayer

Jan Lee headshot

Jan Lee is a former news editor and award-winning editorial writer whose non-fiction and fiction have been published in the U.S., Canada, Mexico, the U.K. and Australia. Her articles and posts can be found on TriplePundit, JustMeans, and her blog, The Multicultural Jew, as well as other publications. She currently splits her residence between the city of Vancouver, British Columbia and the rural farmlands of Idaho.

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